1989 PLP 988 (CLC)

Sardar Ali etc. v. Muhammad Ali etc. P L D 1988 SC 287; Barkat Ali v. Khan Muhammad 1988 S C M R 1800 and Ghulam Qadir v. Nawab Din P L D 1988 SC 701 rel. Mehdi Khan Chauhan for Petitioners. Sh. Naveed Shahryar for Respondent. Date of hearing:19th October, 1988. This judgment will dispose of this revision petition as well as Civil Revision No.1520 of 1987 as the questions of facts and law involved in both these petitions are one and the same.

2. The necessary facts, briefly stated, are that two suits for possession through pre‑emption were filed by the respondent to pre empt the two sale transactions, claiming superior right of pre‑emption on the grounds of co‑sharer and kinship. The suit was resisted by the petitioners/ vendees and the learned trial Judge vide two judgments and decrees dated 18‑2‑1986 dismissed both the suits on merits. The respondent /pre‑emptor filed two appeals to assail the aforesaid decrees and the learned Additional District Judge Gujrat vide two judgments dated 28‑3‑1987 accepted the appeals, set aside the decrees of dismissal of suits and remanded the suits to the trial Court for fresh decision in accordance with law. This led to the filing of present revision petitions.

3. Learned counsel for the petitioners argued that in view of the latest pronouncements of the Supreme Court in the case of Sardar Ali etc. v. Muhammad Ali etc. P L D 1988 SC 287, Barkat Ali v. Khan Muhammad 1988 S C M R 1800 and Ghulam Qadir v. Nawab Din P L D 1988 SC 701, no decree on both the grounds taken in they suits can now be passed in favour of the respondent /pre‑emptor. Learned counsel for the respondent in opposition states that the appellate Court be allowed to decide the appeals afresh. Learned counsel was unable to cite any judgment containing the contrary view to the one declared in the aforenoted judgments.

4. I am not persuaded to agree with the submissions of the learned counsel for the respondent as it will result in wastage of time and money. According to the judgments of the Supreme Court noted above, the respondent /pre‑emptor cannot in any case succeed as admittedly in both the plaints no averment as to the making of Talabs, the prerequisites for exercising the right of pre‑emption under Muslim Law was made. In view of above, there is no alternative but to accept the revision petitions. The two judgments and decrees of the learned Additional District Judge are set aside with the result that the decrees of dismissal of suits passed by the trial Court stand restored. The parties are left to bear their own cost. M.Z.S. /F‑99/L Petitions accepted.